I think this line that you write: "Otherwise it feeds the perception that politics determines criminal outcomes for the most powerful among us," is already how it is. Otherwise, why not prosecute Hillary for an arguably more egregious crime? Or Bill Clinton for perjury? Or Hunter? Or Sandy Berger? Martin Indyk? (There are many, many, many examples...) The point of the discussion was that this could be an endless cycle of lawsuits that have political drivers, or DoJ could choose to pass in a variety of ways. Again, you're right, no one should be immune. But that is not the way it works in today's America. And as we discussed, the implications are greater than some random misdemeanor.
So how much "political weight" does a case have to have before we turn it over to the electorate, instead of a jury? And why should a candidate's political prominence mean that the appropriate punishment for him is not the risk of imprisonment established by the criminal code, but the mere inconvenience or embarrassment of losing an election?
This is an area where we need a bright-line rule that criminal matters must be decided by juries.
Otherwise it feeds the perception that politics determines criminal outcomes for the most powerful among us, which seems to be a point that Yoo is also concerned with.
"3. The correct jury to assess Trump’s fitness is the jury of the American people, not 12 random Floridians. "
This gets it exactly wrong. The correct jury to assess whether a defendant committed a federal crime in Florida is in fact a jury of 12 random Floridians. If we can't trust 12 random citizens to decide whether a crime has been committed, then we are in deep trouble as a constitutional democracy.
If you are suggesting that just because a defendant also happens to be running for office, we should excuse him from facing the criminal process and instead let the voters "render a verdict," you need to think through the consequences of that. They're not hard to imagine:
Criminal Defendant: I'm accused of kidnapping and murder. What should I do?
Criminal Defense lawyer: Announce your candidacy for the water conservation board. Then we'll file a motion to dismiss and tell the court that the only verdict that matters is the one rendered by the voters.
Of course, the point you make is technically correct, and the shorthand in the summary doesn't do justice to the more nuanced argument being made by our podcast guest. Fundamentally, Yoo argues that the Department of Justice does not charge all individuals who have committed crimes (viz Hillary Clinton). And that in a case of this political weight, the wiser option might be to allow the American people (and not a jury of 12 in Florida) to make the call. There are other issues here that outweigh the water board; the constitution and the future stability of the Republic are at stake. But the jury vs the electorate is not a slam dunk argument. It's a consideration. Thank you for commenting...
I think this line that you write: "Otherwise it feeds the perception that politics determines criminal outcomes for the most powerful among us," is already how it is. Otherwise, why not prosecute Hillary for an arguably more egregious crime? Or Bill Clinton for perjury? Or Hunter? Or Sandy Berger? Martin Indyk? (There are many, many, many examples...) The point of the discussion was that this could be an endless cycle of lawsuits that have political drivers, or DoJ could choose to pass in a variety of ways. Again, you're right, no one should be immune. But that is not the way it works in today's America. And as we discussed, the implications are greater than some random misdemeanor.
So how much "political weight" does a case have to have before we turn it over to the electorate, instead of a jury? And why should a candidate's political prominence mean that the appropriate punishment for him is not the risk of imprisonment established by the criminal code, but the mere inconvenience or embarrassment of losing an election?
This is an area where we need a bright-line rule that criminal matters must be decided by juries.
Otherwise it feeds the perception that politics determines criminal outcomes for the most powerful among us, which seems to be a point that Yoo is also concerned with.
"3. The correct jury to assess Trump’s fitness is the jury of the American people, not 12 random Floridians. "
This gets it exactly wrong. The correct jury to assess whether a defendant committed a federal crime in Florida is in fact a jury of 12 random Floridians. If we can't trust 12 random citizens to decide whether a crime has been committed, then we are in deep trouble as a constitutional democracy.
If you are suggesting that just because a defendant also happens to be running for office, we should excuse him from facing the criminal process and instead let the voters "render a verdict," you need to think through the consequences of that. They're not hard to imagine:
Criminal Defendant: I'm accused of kidnapping and murder. What should I do?
Criminal Defense lawyer: Announce your candidacy for the water conservation board. Then we'll file a motion to dismiss and tell the court that the only verdict that matters is the one rendered by the voters.
Of course, the point you make is technically correct, and the shorthand in the summary doesn't do justice to the more nuanced argument being made by our podcast guest. Fundamentally, Yoo argues that the Department of Justice does not charge all individuals who have committed crimes (viz Hillary Clinton). And that in a case of this political weight, the wiser option might be to allow the American people (and not a jury of 12 in Florida) to make the call. There are other issues here that outweigh the water board; the constitution and the future stability of the Republic are at stake. But the jury vs the electorate is not a slam dunk argument. It's a consideration. Thank you for commenting...